TMI Blog2018 (5) TMI 1445X X X X Extracts X X X X X X X X Extracts X X X X ..... o have recorded the statement of the labourers to corroborate their stand, that in fact the goods were being manufactured by the appellant and not by the trading unit. The appellant was availing small scale exemption and if the clearances of the trading units and all the GRs are not included in that event they were exempt from payment of duty as their clearances will be within the prescribed limit - the entire demand is time barred - The circumstances of the case does not justify the invoking of the extended period of limitation. Appeal allowed - decided in favor of appellant. - Appeal No. E/70448/2017-EX[DB] - Final Order No. 70922/2018 - Dated:- 1-11-2017 - Hon ble Mr. Anil Choudhary, Member (Judicial) And Hon ble Mr. Anil G. Shakkarwar, Member (Technical) Shri A. P. Mathur (Advocate) for Appellant Shri Gyanendra Kumar Tripathi (AC) AR for Respondent ORDER Per : Anil Choudhary The appellant is in appeal against Order-in-Original dated 17th February, 2017 passed by the Commissioner, Central Excise Service Tax, Hapur. 2. The brief facts are that the appellant is a partnership concern engaged in manufacturing of Menthol and De-Menthalized Oil (DM ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... are being dealt by the trading units. That the entire demand was raised against the appellant on the basis of surmises and presumptions. 7. That in any case the entire demand raised against the appellant is time barred. The circumstances of the case do not contemplate invoking of the extended period of limitation. None of the ingredient for invoking the extended period of limitation was present. That the Commissioner adjudicated the case vide order dated 04.09.1997. He confiscated the seized goods worth ₹ 99,39,334/- but since the goods were released provisionally, he appropriated the security of ₹ 90,500/- deposited while seeking provisional release. He confirmed the demand of ₹ 53,55,862/- raised on the basis of GRs and imposed penalty on the appellant. He also imposed penalty on the proprietors of the trading units alleged to be operating from the same premises, ignoring the vital fact that the premises of the Trading Units were not shown in the approved plan of appellant. He observed that the demand of ₹ 33,22,722/- is included in the demand of ₹ 53,55,862.15. He also imposed penalty on the proprietor of the transport Company. 8. That feel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ropriated the amount of ₹ 9,00,500/- deposited as cash security while seeking provisional release. 14. He confirmed the demand of ₹ 53,55,862/- involved on the excisable goods valued at ₹ 2,71,54,179/- clandestinely cleared by the appellant during 1993-94 and 1994-95. 15. He imposed a penalty of ₹ 50 lacs on the appellant under Rule 173Q of erstwhile Central Excise Rules, 1944. 16. He was pleased to drop the balance demand proposed in the show cause notice. 17. That feeling aggrieved by the said order the instant appeal was filed before the Tribunal. We perused the records of the case and considered the contentions raised by the appellant and the respondent. 18. That the appellant s counsel had argued that no adverse inference can be drawn against the appellant as the appellant and trading units were functioning from the different premises constructed on the same land. It was wrong to allege that the appellant and the trading units were dealing in the same commodities. The license granted by the Excise Department to the appellant is evident of the fact that the appellant was manufacturing different commodities, than the trading units. The trad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... prior to remand order and if on account of lapse of time, the affidavits were not available in the records of the consignors, and the copies of the same were obtained by them from the appellant, then it does not mean that the appellant was trying to influence the investigation. The affidavits were filed before the appellate authorities much prior to remand by the Hon ble Supreme Court of India along with bank accounts of the consignors in respect of persons whose name appear in the GRs. 23. The Learned Asstt. Commr. (A.R.) supported the adjudication order. 24. Considering the rival submissions and facts on record, we find that the commissioner had decided the case against the appellant on flimsy grounds without any evidence on record. The enquires made from the consignors revealed that they had confirmed the contents of the affidavit. In fact no records were required when the affidavits were filed. We agree with the consignors that since the issue is 22 to 23 years old, hence the records were not available as the same were destroyed; but since the bank accounts were furnished, that is enough to prove the veracity of the affidavits. Moreover the officers failed to make any enq ..... X X X X Extracts X X X X X X X X Extracts X X X X
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